Investigations in the Face of Facebook
In January 2014, the social networking company Facebook had approximately 1.23 billion active users every month. In September 2013, the social networking and microblogging company Twitter, Inc. had 200 million users sending 400 million tweets per day. In June 2013, the business-focused social networking company Linkendin® had 259 million registered users.
With so many people turning to social media sites to promote themselves and/or a business, make professional connections, make personal connections, or to simply have a sharing outlet, the content of a person’s profile might just be the key to winning your case. While the law regarding the formal discovery of the content of a person’s social media profile and the use of that content in legal proceedings is still developing each day, social media is successfully being obtained and utilized by litigators.
From a very basic level, performing information discovery of the content of a person’s social networking profile can assist in determining how you should proceed in the investigation of your case. Specifically, a person’s social media account might allow you to gain insight into a person’s life outside of their employment which can later be used in deposition questioning, can assist in determining whether you should conduct sub rosa video/investigation, whether they are performing activities they claim to struggle with or simply cannot do, or perhaps they are running an outside business that they have not disclosed. All of this information can be used to gather the necessary information to win your case or assist in devaluing the claimant’s case.
PKNW recently had a personal injury defense case that was dismissed by the plaintiff at the Mandatory Settlement Conference with no recovery by the plaintiff. The plaintiff in that case had claimed a serious injury to her shoulder as a result of a fall on our client’s premises. The plaintiff claimed that she injured her shoulder so severely that she was unable to raise her arm at the shoulder. In her deposition, she testified to prior activities that she could no longer engage in as a result of her injury, including coaching cheerleading. We were able to locate a website for the particular cheer team she worked with. The web page included over 600 photographs of various activities of the cheer squad, including some that depicted the plaintiff freely using the “injured” arm. As a result, sub rosa video was performed. It turned out that not only was she still coaching cheer, but there was no indication in the lengthy video that her shoulder was even remotely injured. Although in mediation the plaintiff continued to claim that the person depicted in the video was not her and that she had an “injured” shoulder, her attorney, as well as the judge for the Mandatory Settlement Conference, were not convinced of her injury. The result was a dismissal by the plaintiff in exchange for a waiver of costs.
The moral of the story is that with so many social networking sites and so may users on social networking sites, a preliminary review of various sites can provide insight into the claimant that they may not freely offer. The information gathered can help steer the direction of your investigation and might even result in the most favorable outcome, a dismissal by the claimant.